GWEN IFILL: Big news this week on politics, the law and foreign policy, and we’ve got absolutely the best in the business to help you make sense of it tonight on “Washington Week.”
SENATOR THAD COCHRAN (R-MS): (From clip.) We all have a right to be proud of our state tonight. (Cheers, applause.)
MS. IFILL: A seriously endangered incumbent survives a Tea Party challenge.
HILLARY CLINTON: (From clip.) I shouldn’t have said the, I think, five or so words that I said, but, you know, my inartful use of those few words doesn’t change who I am.
MS. IFILL: A likely candidate for president tries to clean up a misstep, and the election season is off to a roaring start.
At the Supreme Court, major rulings on the limits of protest, technology and executive power.
SENATOR CHUCK GRASSLEY (R-IA): (From clip.) Praise, then, today to the Supreme Court for forcing the president to confront the errors of his ways.
MS. IFILL: Plus, a close-up analysis of the upheaval in Iraq. Covering the week near and far, Dan Balz of the Washington Post, Joan Biskupic of Reuters, Pete Williams of NBC News and Martha Raddatz of ABC News.
ANNOUNCER: Award-winning reporting and analysis covering history as it happens. Live from our nation’s capital, this is “Washington Week” with Gwen Ifill. Once again, live from Washington, moderator Gwen Ifill.
MS. IFILL: Good evening. What a week for politics as Thad Cochran pulled off a Lazarus-like victory in Mississippi and Hillary Clinton staged a kind of supermarket cleanup on aisle three – (laughter) – over and over again. You can’t make this stuff up. And fortunately, Dan Balz doesn’t have to.
DAN BALZ: (Chuckles.)
MS. IFILL: So Dan, Cochran’s surprise victory – did it explode yet another theory about the Republicans and the Tea Party and everything we had decided on earlier in the year?
MR. BALZ: It didn’t explode it, but it brought it kind of back to Earth. I think it told us a lot about Mississippi. I mean, Mississippi is one of the most conservative states in the country. It also happens to be one of the poorest states in the country, and Thad Cochran survived a very tough challenge by understanding and exploiting the reality that Mississippi depends heavily on the federal government for assistance and aid, and he did not back away from that.
Now, this was, in many ways, sort of the climactic battle between the Tea Party and the establishment of the Republican Party. Chris McDaniel – young state senator – gave him a – was ahead of him after the first round of voting – led in the primary, but neither got 50 percent, so they had to go through the second round.
And Cochran was able to defy the odds; he was the underdog at this point – and also defy history. The assumption is, in a run-off, turnout goes down. And Cochran’s strategy was, we are going to try to boost turnout, and, in fact, turnout across the state went up 20 percent, and it went up significantly more in many of Cochran’s best counties.
MARTHA RADDATZ: And how did he do that specifically? I mean, very unorthodox approach to this. Drill down and tell us exactly what he did.
MR. BALZ: Well, he did two things. One, which goes completely against what you would expect in a Republican primary, he reached out to Democrats, and particularly, African-Americans. He has – he has been effective in delivering, as I said, a lot of money to the state, and he rallied the establishment behind him, black and white, to try to help him and save him, and they turned out a significant black vote in the runoff. I mean, the counties that are predominately African-American had a higher increase in turnout than did the counties that are predominately white.
MS. IFILL: Fiftieth anniversary of Freedom Summer, when they went down to register black voters. The ironies abound.
MS. : Exactly. Amazing.
MR. BALZ: Right. But the other thing he did – and this was – this was foreshadowed the day after the primary; I had a conversation with Haley Barbour, the former governor, and he said, we are going to find Republicans who thought that Cochran was OK and therefore didn’t come out to vote. And there are places in the state where, almost organically, without the direct help of the Cochran campaign but with the help of people who are part of the Republican establishment, they went out and got Republican voters.
JOAN BISKUPIC: Well, Dan, on that – the Tea Party versus the establishment, you said this was this climactic battle. What will we see going forward for the Tea Party?
MR. BALZ: Well, we are – we are not likely to see a challenge in a primary this year that has any kind of resonance in the way this had. The Tea Party has lost just about all of these battles this year, and yet, if you look at the state of Republican Party, it is still a party that is split between establishment and insurgents, or populist conservatives and the business wing, and I don’t think that we’re going to see a diminution of that in the near future just because of the way these races came out.
MS. IFILL: Let’s talk about the Democratic Party for a moment, because, in my conversation this week with Hillary Clinton, the former secretary of state unveiled a new reason for delaying her decision about whether to run for president. Call it “the grandmother defense.”
MS. CLINTON: (From clip.) I have no illusions. I probably have a better idea of what it takes both to win and to govern than, you know, many people who might choose to seek the job, and I also know that when you make that decision – if you – it’s a go decision, there’s nothing else. That is what you have to do full-speed. I don’t want to be looking over my new grandchild’s shoulder, wondering what’s happening in state X or Y. I want to be fully engaged, and then, as I’ve said many times, you know, toward the end of the year, I will sit down and try to make sense of my conflicted feelings.
MS. IFILL: But it’s not the conflicted feelings which are the problem here, it’s a bubble problem she has this week.
MR. BALZ: It is a bubble problem. The thing that’s so interesting is, she’s just published this very large book about foreign policy and four years at the State Department, and she has spent much of the three weeks trying to explain how the Clintons became so wealthy over the last decade. This is something that she didn’t expect; she walked herself into it, and she’s struggled, as she did with you, to try to get herself out of it.
MS. RADDATZ: Saying she’s dead broke – they were dead broke, yes.
MR. BALZ: Well, she said at one point they were dead broke coming out of the White House; they were in debt, to be fair, but they had plenty of earning options on the (front ?).
MS. RADDATZ: They had some potential there. (Laughter.)
MR. BALZ: She said to the Guardian newspaper that they are not truly well-off compared to some other people; a lot of people would be happy to be as well-off as they are. And so there has been a kind of a tone-deafness to this as she’s gone around, and she’s still struggling to kind of make it whole.
MR. WILLIAMS: Where does that come from? She’s been in public life awhile. Why is that happening?
MR. BALZ: I think a lot of people who are kind of in the general Clinton orbit who would count themselves as Clinton loyalists or supporters have been shocked by this. I mean, I think that they felt she was unprepared, that she should have had a better answer to that question when it was first asked, that she could have put it – put it away early on and moved on to what she really wanted to talk about.
I don’t know. I mean, it’s hard to get inside somebody’s head, but you have to think that she has a perception of herself and her husband and the lives they’ve lead that looks different than it does to people who look and say, wait a minute, they get $225,000 to give a speech? I mean, that’s something that most ordinary Americans can’t quite grasp.
MS. IFILL: Well, if you’re going to stumble, it’s better to stumble now than to stumble a year from now, if you’re going to do this. So that might be part of what’s going on, too.
Let’s move onto the Supreme Court, because there was so much going on at the court this week that we had to split this story in half. Fortunately, we have both Pete and Joan here to help. First, the two unanimous decisions: one on abortion protests, and the other on cell phone privacy. It turns out, police need a warrant to get access to the treasure trove of information that we all now store on our smart phones, Joan.
MR. BISKUPIC: Yes. The Supreme Court said that when you’re arrested – when anyone’s arrested, the police cannot automatically search the contents of a cell phone like they can other things that you might have on you – you know, anything that’s in your pockets; crumpled up cigarette wrappers – anything to look for evidence, or, frankly, to also make sure that you’re not carrying anything that would be harmful and hurt police.
And you referred to the treasure trove of information there. The justices demonstrated that they really got smart phones, that they were smart about them. There was some commentary during oral arguments where the chief justice said, now, who would ever have two of these kinds of phones? (Laughter.)
Justice Sotomayor said later that, yeah, exactly, a couple of his colleagues actually have two cell phones for work and then for personal business, and she said later that a few of them did set the chief justice straight on that. But throughout the whole opinion, which was unanimous, as you said, there were all sorts of references to everything that can be found on a phone these days. They could have a camera, video capabilities, a diary of all your letters; he got – the chief justice got off some great lines about, who would be carrying around now every letter that he or she received, and everything that – you’d have to have a trunk with you. And the point was that they decided that the Fourth Amendment actually covers these things in a different way than they would something physical.
MR. BALZ: What does this mean, if anything, for the whole controversy about what the NSA has done in collecting information of people’s cell phone and telephone calls?
MS. BISKUPIC: Well, they really showed that digital data – they understand that digital data is different, that the scope of it is so much more than what you would have in any other kind of fourth amendment search, so I think, for the NSA issues, the ones that have been raised by Edward Snowden, that for people challenging the government encroachment on that kind of digital data, this ruling is a good baseline, because the justices said, this is different kind of information here.
MS. IFILL: Privacy has its costs, the justices said.
MS. BISKUPIC: Yes.
MS. IFILL: And that’s the tradeoff.
MS. BISKUPIC: That’s right – that’s right. And it also said, look, there’s some concerns that the federal government and the states had who were saying that police should be able to search what’s on a cell phone, that there could be some remote erasing of data that could end up being decent evidence, and they said, well, you can solve that down the road.
MS. IFILL: Second case was first amendment, free speech case involving abortion protests.
MS. BISKUPIC: Yes. Really brings us back, doesn’t it, you know, to the ‘80s and ‘90s? And this involved a Massachusetts law that had a 35-foot buffer zone around clinics that said that people who wanted to protest, but also, people who wanted to give women some information to perhaps dissuade them from having abortions – that that zone was too large, and again, it was unanimous, although some of the more conservative justices peeled off on a free speech issue. But again, Chief Justice John Roberts writing an opinion saying, you can regulate protests and you can regulate involvement with women trying to go into the clinic, but 35 foot is too far, and these prohibitions need to be narrowly tailored, and this one is Massachusetts was not.
MARTHA RADDATZ: So going forward, Joan, I mean, does this end this? Is it a violation of free speech? Is it a violation of free speech? Is it – what exactly does it do going forward?
MS. BISKUPIC: No. In fact, the justices really gave people who run these clinics something. They didn’t – they didn’t reverse a 2000 ruling that said that you could have little floating buffer zones around people; they didn’t reverse that, and they also didn’t say that these kinds of regulations get to the heart of the content – the viewpoint of people who might be protesting. They said these things can be important for police and communities to regulate these, it’s just that they have to be narrowly tailored. So it was a big free speech ruling, but it didn’t say that free speech was encroached by any kind of limitation.
MR. WILLIAMS: And yet, they’re – at the same time, I think, there is also language in this opinion that could be used in the future to undercut these other protections that Joan is talking about, like the bubble zone, because one of the things the court said is, you’re doing this on a sidewalk; that’s sort of ground zero for free speech, and people ought to be able to come up and talk to you directly. And just because you’re in some activity that’s protected doesn’t mean you shouldn’t be shielded from unpleasant things. So the groundwork may be laid here for undercutting some of these other protections.
MS. IFILL: OK. We’ll move onto the next thing, because there were more. (Laughter.) Let’s turn to the other two big decisions of the week. One dealt a blow to a new kind of streaming technology, and the other dealt a blow to the president. To wit, his power to make appointments unilaterally while Congress is in recess. That decision, too, was unanimous, but the court could have gone a lot farther, couldn’t it?
MR. WILLIAMS: Yes, and, in fact, the four more conservative justices basically wanted to say, the recess appointment power is a relic of the horse and buggy days, that it’s useless now. In fact, in modern times, it’s basically been an end run around a Senate that won’t confirm a president’s nominees. But here’s the point: the Constitution gives the president, quote, “the power to fill up all vacancies that may happen during the recess of the Senate.” And here’s what the Supreme Court said that means: First, a recess can be during sessions, not just between sessions, when Congress takes a break that lasts at least10 days as well as between sessions of Congress. Second, it can be used to fill vacancies that arise any time – not just during a recess.
Third, the Senate gets to define when it’s in recess, and so these little pro-forma sessions count when the Senate comes in, bangs the gavel and says, we’re in recess until next Thursday. As long as those happen – the – to shorten the breaks – less than 10 days, the Senate can now defeat a president’s ability to make recess appointments, because the court says the Senate still – it’s not in recess.
So as a legal matter, the recess power remains, because the court didn’t strike it down. It didn’t go as far as the conservatives wanted to to say it’s a dead letter. But as a practical matter, the Senate now has the key to prevent the president from being able to make recess appointments.
MS. RADDATZ: Has President Obama approached these recess appointments differently than previous presidents?
MR. WILLIAMS: Well, in two ways. One, he’s done it less than most other presidents. He’s made, I think, 23 recess appointments. But he was the first one to sort of say, this is nonsense. This – pro forma sessions is a talismanic effort to try to – to, you know, ward off a recess; let’s challenge it. He’s the first one to actually make a recess appointment while the Senate was doing these pro forma sessions, and the Supreme Court said, sorry, that’s unconstitutional.
MR. BALZ: But the Senate has changed the rules, also, on approving these nominations, right? So how does that fit into what the court has said?
MR. WILLIAMS: Well, so – it also lowers the stakes for this outcome. It’s not such a great – it’s not the momentous thing it would have done. Now the Senate says, we won’t filibuster presidential appointees. So it sort of lowers the temperature a little bit.
MS. IFILL: Let me talk about a – and I just want to talk about this other fourth case – Aereo, this video streaming service – yet another technological challenge for the justices. But in this case, they actually pulled back on – they kind of voted against the innovation – (inaudible) –
MR. WILLIAMS: Yeah. So Aereo was a technology that allowed people to watch over-the-air broadcast programs such as this one on a computer or a mobile device.
MS. IFILL: And PBS was a party to the case, I should point out.
MR. WILLIAMS: Yeah, I was going to mention that. Yes. And so was NBC, as long as we mention it. (Laughter.) But to get around the law that basically protects a public performance – and the courts have said a television program is a public performance – Aereo said, well, we’re going to give each viewer a private performance. We’re going to assign them a little tiny antenna – this little dime-sized antennas – this is an Aereo antenna that they would have had just a whole wall full of these in this – about a dozen cities where they operate. You’d get your own antenna for the program you wanted to watch, and you’d get a separate little segment on a video recorder.
So what Aereo said is, well, there’s no problem here; this isn’t a public performance. It’s a private performance. We’re giving you a service – basically, what you could do in your own home with your own antenna and your own digital video recorder and the court said, sorry. If 100,000 are watching the people on Superbowl on Aereo, it’s not 100,000 private performances; it’s a public performance. That violates the copyright law, and the way Aereo is set up is illegal.
MS. RADDATZ: Can I ask you, just in a larger picture of these opinions, what it tells you about the court? Is there anything that you can weave between all these opinions that tells you anything?
MS. BISKUPIC: Well, they really are trying not to go too far. In fact, in this ruling in Aereo, they said, look, we’re not trying to stifle innovation. We’re not against what this company was trying to do, but we need to take this step at this point for federal copyright law. And they bent over backwards to say, we get the cloud, we get all these things that it sounded like we didn’t get, but we – so this is – only a small step –
MS. RADDATZ: And the cell phones – everything. We’re so cool.
MS. BISKUPIC: Right, right. Well, and that was it. And that’s why I think that you had either a large majority or a unanimity on some of these. And that’s usually a good test of how far they’re going. They’re not. They’re not taking strides at this point; they’re taking more baby steps.
MS. IFILL: And did broadcasters – did they shut Aereo down?
MR. WILLIAMS: Well, in theory, Aereo could continue, because it’s actually a very slick service. I’ve tried, and it really works well. And Aereo could –
MS. IFILL: Give me that. (Laughter.)
MR. WILLIAMS: Sure – Aereo could, in theory – by the way, you need the rest of the equipment. (Laughter.)
MS. IFILL: Oh, I can’t just?
MR. WILLIAMS: It could, in theory, charge higher rates and pay the networks a copyright fee, but Barry Diller, who was the real dough behind Aereo, basically said – he told CNBC this week, it’s over, because his real goal here was to come up with a model that would challenge how television is distributed. He wants to break the cable companies’ methods for bundling their services.
MS. IFILL: OK. Thank you, Pete. Thank you, Joan. You’ve got one more big case on Monday; we’re going to wait and see what happens there.
The Iraqi military is crumbling. The Sunni insurgent group ISIS is claiming more territory, and Iraq’s democratically-elected prime minster is seriously weakened. Martha’s traveled to Iraq repeatedly, and is back from her latest trip just in time to give us an update. When you get up close, is the biggest challenge what’s happening on the ground militarily, Martha, or what’s happening politically?
MS. RADDATZ: Well, I think the immediate challenge is militarily, because you have got the sense of fear of being in Iraq and what could happen and what has already happened. And I’m sure you’ve already seen those horrendous videos that ISIS – this Islamic militant group – is putting out of executions – mass executions – clearly war crimes in areas of Iraq. And you look at that map – you look at that map, and the west fell – I was there in January as well – and Fallujah had already fallen; parts of al-Anbar province had fallen. And now you have the north – of them just walking through – basically just marching – walking through and taking these towns. And I think you can’t unscramble that egg.
So militarily, it’s a challenge. We don’t really have people there to deal with that. And there’s all sorts of complications because of that, and the Iraqi military forces – you’ve also seen the pictures of that. They dropped their weapons, they dropped their uniforms and they ran, and there was a terrible sense, when I got there about 10 days ago, that Baghdad would fall. I mean, there was a real fear that Baghdad would fall, and I think that fear has clearly receded, because I think that you have the strongest Iraqi military forces – you clearly have a political problem as well, and that is a long-term problem, and you have Prime Minister Maliki, who has not brought the various ethnic and religious groups together in any way. He hasn’t given the power to the minorities. And going forward, they have to solve that. So you have an urgency there, but I think there is a real urgent problem with the military as well.
MR. WILLIAMS: Can I ask about Baghdad? Why is it that you think it’s not going to fall? Are you saying that, sort of, the A-team militarily of their military is there?
MS. RADDATZ: Well, you’ve got the Shiites – you’ve got – you’ve got the majority there, and you’ve got the majority Shiites probably in charge there and wanting to protect their city. And that’s why I think it receded. It doesn’t mean that you won’t have attacks there – and that’s something else that no one has paid any attention to in the last year. I mean, you had, I think, in June, a thousand Iraqi civilians killed. There are bombs going off all the time. There are gunfights all the time. So you could have more destabilization by ISIS, but I think – at this point, like, why bother attacking? We’ve got all this different area. We’ve disrupted Iraq to a degree that we haven’t seen in many, many years – I mean, it was really the bad old days in Iraq.
MS. BISKUPIC: What is the next step for the U.S., though, militarily here?
MS. RADDATZ: Well, right now, I call them the barefoot advisers – (laughter) – because the president has said over and over again that there will be no boots on the ground, but we have 300 advisers on their way in – advisers, trainers. And these are not – and we also have 275 extra forces in the embassy, which was also under real threat then, and they’ve evacuated a lot of people in the embassy.
But going forward – and I think you could see it grow a little bit. They need – if they U.S. decides they want to do airstrikes – if they decide urgently they need to do airstrikes – they’re now saying they’ve got drones up; they’ve got other aircraft up to protect our troops who are going out beyond that embassy – they are going out beyond the embassy, and that’s without the usual so-called “force protection” people to look after them. I think this is a risky mission.
MR. BALZ: But what – I just wanted to know – give us a little better sense of, what is the mandate of the U.S. forces that are there? What are they being asked to do, what can they actually do?
MS. RADDATZ: The mandate is to figure out – yeah, the mandate right now is to go figure out what the problem is. In other words, how capable are the Iraqi security forces? Can they hold Baghdad? Can they continue? Can they take back these other areas?
MS. IFILL: But here are the problems. There’s – well, there’s a problem along the Syrian border. There’s a possibility of collaboration with Iran. There is John Kerry today in Saudi Arabia trying to get the region –
MS. RADDATZ: It’s crazy.
MS. IFILL: It is.
MS. RADDATZ: I mean, you’ve got – you’ve got the Iranians there, you’ve got Syria carrying out airstrikes – unclear whether it was on the Syrian side of the border or the Iraqi side of the border – but you’ve got that entire border. You’ve got the Syrian border taken over by these militants. You’ve got the Jordanian border taken over by these militants. I mean, this may seem like it’s receding, but I think it’s a total crisis at this point.
MS. IFILL: But that’s why the U.S. is stuck trying to work out a political solution in the region, right?
MS. RADDATZ: Yes, they definitely have to work out – help work out some sort of political solution to this –
MR. WILLIAMS: And what are the odds of that?
MS. RADDATZ: Well, I think the odds are pretty good –
MR. WILLIAMS: Really?
MS. RADDATZ: – because you’ve got the clerics trying to pressure Maliki, too, to be more inclusive. So I think that’s pretty good. Although, you think about it, I don’t know who they’re going to get.
MS. BISKUPIC (?): Yeah.
MS. RADDATZ: I mean, they may get rid of Maliki, but I don’t know who will take his place.
MS. IFILL: Well, that becomes the next problem. We discovered that in Afghanistan.
Thank you all so much. Before we go tonight, we want to take a moment to note the passing of former Senator Howard Baker, a Republican of Tennessee, a son of the south and an example of politics at its best. Senator Baker served as an ambassador, a White House chief of staff, majority and minority leader and memorably as vice chairman of the Senate Special Watergate Committee.
SENATOR HOWARD BAKER (R-TN): (From clip.) What did the president know, and when did he know it?
MS. IFILL: Among other things, he will be remembered as someone who knew how to work across party lines when that mattered. Howard Baker was 88.
Thanks everyone. We have to go now, but as always, the conversation continues online – the “Washington Week” webcast extra streams live at 8:30 p.m. Eastern, and you can find it all week long at pbs.org/washingtonweek. Among other things, we’ll talk about the Supreme Court’s big final decision day on Monday and what comes next.
And while you’re online, find out what our “Washington Week” panelists are reading on our summer reading list. We’ll be off next week, celebrating Independence Day, so be sure to watch “A Capitol Fourth” right here on your local PBS station. Keep up with developments on the “PBS NewsHour”, and we’ll see you in two weeks right here on “Washington Week.” Good night.